Seventh Circuit Issues Revised Conspiracy Withdrawal Instructions Following Smith v. United States

The Seventh Circuit is the first circuit to publish revised jury instructions based on the recent ruling Supreme Court ruling clarifying the burden to withdraw from a conspiracy in Smith v. United States, 568 U.S. _, 133 S.Ct. 714, 184 L.Ed.2d 570 (Jan. 9, 2013), which abrogated prior Seventh Circuit cases on the issue

On January 9, 2013, the Supreme Court issued a unanimous decision clarifying the burden of proof to establish withdrawal from a conspiracy. In a decision authored by Justice Antonin Scalia, the Court held that the defendant holds the burden to prove withdrawal and the government does not bear any burden to disprove withdrawal. See Smith v. United States, 568 U.S. _, 133 S.Ct. 714 (Jan. 9, 2013). The ruling resolved a split on the issue among the circuits.

Following the ruling, the Federal Evidence Blog noted that:

Several circuit jury instructions will have to be modified to conform with the decision. As one example, the following statement from Ninth Circuit Criminal Jury Instruction 8.24 (Withdrawal from Conspiracy) is no longer an accurate statement of law:

The government must prove beyond a reasonable doubt that the defendant did not withdraw from the conspiracy before the overt act—on which you all agreed—was committed by some member of the conspiracy.

Manual of Model Criminal Jury Instructions for the District Courts of the Ninth Circuit, Prepared by the Ninth Circuit Jury Instructions Committee, at p. 150 (2010 ed.).

Supreme Court Watch: Deciding The Burden Of Proof On Conspiracy Withdrawal.

The Seventh Circuit has now modified three jury instructions consistent with the recent Smith v. United States decision. See Revised Conspiracy Withdrawal Jury Instructions 5.13, 5.14(A) and 5.14(B) (updated Feb. 4, 2013). The Committee Comment notes that the Supreme Court ruling “abrogated a line of Seventh Circuit cases, including United States v. Morales, 655 F.3d 608, 640 (7th Cir. 2011), United States v. Starnes, 14 F.3d 1207, 1210-11 (7th Cir. 1994), and United States v. Read, 658 F.2d 1225, 1236 (7th Cir. 1981).

The new model instruction clarifies that the “defendant has the burden of proving that it is more likely than not that he withdrew from the conspiracy.” Withdrawal is not established by “[m]erely ceasing active participation in the conspiracy.” The following factors are noted to guide the jury on whether withdrawal has been demonstrated:

(a) [completely undermining his earlier acts in support of the commission of the crime so that these acts no longer could support or assist the commission of the crime], or
(b) [alerting the proper law enforcement authorities in time to give them the opportunity to stop the crime or crimes], or
(c) [performing an affirmative act that is inconsistent with the goal[s] of the conspiracy in a way that the co-conspirators are reasonably likely to know about it before they carry through with additional acts of the conspiracy], or
(d) [making a genuine effort to prevent the commission of the crime], or
(e) [communicating to each of his co-conspirators that he has abandoned the conspiracy and its goals].

Revised Instructions 5.14(a) and 5.14(b) address the circumstance of withdrawal from a conspiracy based on a defense under the statute of limitations. In part, the new guidance provides:

If, on the other hand, you find from your consideration of all the evidence that the government has proved each of these elements beyond a reasonable
doubt, then you should find the defendant guilty [of that charge], unless you also find that the defendant has proved that it is more likely than not that he withdrew from the conspiracy more than five years before the return of the indictment in this case. A defendant who has so proved should be found not guilty.

While the Seventh Circuit is the first to revise its instructions, other circuits likely will do so in the near future. For other jury instructions, see the Federal Jury Instructions Resource Page.


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